Guido Noto La Diega, Professor in IP Law and Technology Law, Stirling University
At the end of 2022, I published the book Internet of Things and the Law for Routledge (let’s get the shameless plug out the way). The Internet of Things (IoT) is an inextricable mixture of hardware, software, service, data, and digital contents – as such, it challenges existing principles relying on a number of dichotomies e.g. hardware-software, good-service, etc. The IoT ushers in the era of rematerialisation, where things we were used to conceive as intangible – data, software, service, digital contents – becomes entangled with hardware, thus becoming ‘rematerialised’ and using the data collected through sensors to control the physical world.
In my book, I shed light on some key issues that those using smart devices should be aware of, e.g. the ‘Internet of Personalised Things’, the phenomenon whereby a customised socio-technical ecosystem becomes a vehicle for manipulation. I tried to show that, for the most part, the law can be interpreted in a way that tackle those issues, and pointed at some recommendations to move past the status quo through law reform complemented by legal design.
While not denying that the law has still a role to play in governing emerging technologies, I am convinced that we cannot rely solely on the law – let alone solely on the tech – to solve the problems of our hyper-connected world. To build my argument I adopted a loosely Marxist theoretical framework. In doing so, I was inspired by the resurgence of critiques to capitalism spearheaded by David Harvey, my maestro Luca Nivarra, Julie Cohen, and others. Similarly, great books like Shoshana Zuboff’s Surveillance Capitalism were a source of insight, despite being permeated by the optimistic conviction that there can indeed be a good capitalism, one that I do not share. That book is also responsible for my 15 minutes of fame, as it cited a study about Google Nest I conducted with Ian Walden in 2016. But I digress.
The starting point is to understand what Marx thought about both technology and the law. On the first front, he wrote that, as machines replace workers, the latter confront ‘capital as an isolated individual, standing outside the social connection with his fellow workers […] Human beings are merely the living accessories…of the unconscious but uniformly operating machinery’ (Economic Manuscript of 1861–63). As machines become pervasive – around us in the smart city, on our body thanks to the ‘wearables’, inside of us thanks to neurocomputing – we increasingly become the living accessory of the ‘smart’ machinery and our isolation from our fellow human beings becomes starker.
When it comes to the Marxist conception of the law, the starting point is that the law operates as an ideology that is designed to hide the structures of class domination within the State. Written by the dominant class – and heavily influenced by the technology companies that it is supposed to reign in – the law is ontologically pro-powers that be. If that is the case, how can the law tackle the problems of techno-capitalism? I will illustrate the concept by looking at data protection in the IoT.
If you have a smartphone, a smart watch, a smart TV, etc., you may not be aware of the huge quantity of personal data that these devices collect about you and send back to the manufacturers, who normally share them with countless third parties. Through a combination of technology-fuelled de facto control over data, contractual power, and intellectual property rights, IoT companies amass the big data generated by and through these devices – both personal and non-personal – and prevent you, the user, from accessing it. We call this ‘digital dispossession’, which is a phrase linked to Marx’s accumulation by dispossession, which I turn to briefly explain. The origins of class distinction is the so-called primitive accumulation i.e. the violent accumulation of land and wealth through war, colonialism, etc. Harvey has convincingly argued that this violent phase does not end with the transition from the feudal mode of production to the capitalist mode: it is a continuing process that is intrinsic in capitalist accumulation. As Zuboff put forward, digital dispossession is similar as it is a continuous process and its violence may simply have a more colourable face.
How is it possible that digital dispossession takes place, when there are laws such as the General Data Protection Regulation (GDPR) that give us a right to access that data, and have it deleted? As part my book, I asked Amazon to grant me access to the data that Echo – the Alexa-powered speaker – collected about me. The reply was puzzling, as I was presented with hundreds of indecipherable tables, of which the one below is just an example.
| Device record time | Data source name | Country of residence | Software version |
| 21/03/2019 01:24 | G070L8118454139U | GB | 288.6.3.2_user_632552020 |
| 21/03/2019 01:24 | G070L8118454139U | GB | 288.6.3.2_user_632552020 |
| 21/03/2019 00:28 | G090RF04743204M2 | GB | 288.6.3.1_user_631550720 |
| 21/03/2019 00:28 | G090RF04743204M2 | GB | 288.6.3.1_user_631550720 |
| 20/03/2019 20:50 | G070L8118454139U | GB | 288.6.3.2_user_632552020 |
| 20/03/2019 20:25 | G090RF04743204M2 | GB | 288.6.3.1_user_631550720 |
| 19/03/2019 20:04 | G070L8118454139U | IT | 288.6.3.2_user_632552020 |
smart home blog post altiThis data says very little about me, those tables were only a small part of the data that Amazon held about me. What about the more precious ‘inferential’ data e.g. the profile that Amazon has developed about me, the preferences, desires, vulnerabilities, etc. that they are now aware of thanks to the digital dispossession silently carried out through their smart speakers? And yes, if I wanted to I could erase all data – or at least the data contained in those tables – but if I do, Amazon lets me know that this will “degrade your experience over time”, as Alexa needs that data to keep providing a personalised service. We are therefore presented with the false alternative between having control over our data or getting the best out of our smart products.
It is true that, in theory, one could bring a lawsuit against Amazon under the GDPR, for example arguing that the inferences the company makes about us based on the data collected through Echo is personal data. Let’s leave aside how unlikely such scenario is. If it did materialise, would that prove that the GDPR is an anti-capitalistic tool? Quite the opposite. To expand on this, we need to go back to Marx and his explanation as to why the owner of the factory – who is only interested in maximising profit and therefore exploits the worker – does not carry out a full dispossession; notably, workers still receive a wage. Why don’t capitalists pay the worker the wages? As Rosa Luxemburg clearly put it, for exploitation to take place, capitalists need a sufficient quantity of labour-power. To ensure this, capital makes sure that workers can maintain themselves (typically through wages) “so that they will be available for future exploitations”. As data is the main commodity in the IoT market and we, the users of smart devices, produce it, we are unwitting workers who are given the illusion of fairness through the grant of GDPR rights, so that we will remain available for future digital dispossessions.
What’s left to do when the law fails us? How do we tackle the power abuses stemming from emerging technologies? Going back to the Marxist view of law and technology, they clearly work together to prevent workers – and, today, all citizens – from developing an awareness of their subordinate condition and from uniting in order to put an end to exploitation and extraction. Accepting the law’s limitations does not equate to surrender, as if nothing could be done to tackle the grand societal challenges of our time. Indeed, Marx reconciles the historical materialist tenet that human behaviour is conditioned by external factors (mainly socio-economic ones) with the acknowledgement of the importance of conscious action in the transformation of societies. This concept is expressed with lyrical beauty Gramsci in a letter written while in prison to his eldest son Delio, who was only two when he was arrested. There, the anti-fascist intellectual wrote that one cannot but love history above all else as history concerns “all the people in the world, when they unite (…) and work and fight and improve themselves”.
Among the most inspiring forms of collective resistance to subvert existing power dynamics, one cannot ignore the many fights organised around the world to collectively manage the “commons” and make sure the latter benefits the relevant communities. Traditional examples of commons include forests, fisheries, or groundwater resources. We have seen so many examples of formal and informal collective acts of resistance e.g. to occupy abandoned civic theatres and to counter the propertisation of water. A Marxist approach demands a focus on the oppressed; in the context of the commons, this means a deeper engagement with the histories of resistance of marginalised groups. For example, there is much to be learned from the queer commons: it is no accident that one of the most important moments in the history of the commons – and arguably the most dramatic moment of public opposition to Erdogan – was the occupation of Gezi Park in Turkey to prevent its transformation into a shopping centre. This is an example of queer commons as Gezi Park was known as a place of cruising and sex work. Similarly, the commons can be framed as a movement of collective resistance to power abuses and societal injustice through the lens of Black Lives Matter and similar movements around the world. José Esteban Muñoz famously coined the phrase ‘brown commons’, which is “not about the production of the individual but instead about a movement, a flow, and an impulse, to move beyond the singular and individualized subjectivities”. While Marxists have not always at the forefront of queer and brown liberation, there is a growing body of work that combines Marxism and queer, trans, and anti-racist studies. This literature tells us that – when the law fails us, others us, or leave us disempowered – by uniting, organising, and fighting we can address the inequalities and injustices that plague our world.
While examples of collective resistance to protect the physical commons, we have not seen the same in the digital commons. Calls to ‘occupy the Internet’ exist, but they have remained uncoordinated, and their impact limited. This can be at least in part explained as humans feel a closer connection to things they can touch and see, whereas data, the Internet, etc. tend to be conceived as impalpable and remote. My prediction is that the IoT will change this. Circling back to the idea of ‘rematerialisation’, as data, software, digital content, and services become embedded in smart devices and systems, their materiality provides an unprecedented opportunity to extend the conflict from the physical world, to the cyber-physical one. Examples of collective resistance to IoT power are popping everywhere, and I believe that the ‘right to repair’ movement is the perfect illustration of my point. This goes at the core of why I believe we must look deeper into the IoT. In 2017, farmers who had been pushed to buy ‘smart’ tractors were told that they were not allowed to fix their tractors as that would qualify as copyright infringement and be in breach of the relevant end-user licence agreement. Farmers fought back by organising and using allegedly illegal Ukrainian firmware to hack their own tractors. The movement has since become global, with collectives popping up everywhere and a range of initiatives being deployed to resist IoT power while advocating for legal and cultural change. It is no accident that such a movement coalesced at the intersection of the cyber and the physical.
The prominence of grassroots movements in ‘fixing’ the IoT can also be explained in light of the convergence between the right to repair and the interests of a diverse range of stakeholders e.g. the environmental groups wanting to realise the circular economy, human rights organisations wanting to bridge the digital divide, and small businesses wanting to contend the repair market. This is leads us to the final question: how do we ensure that such collective actions become more widespread and can be sustained over time? For me, the main answer lies with the idea of alliances. As Morozov and Bria put it, “[t]hrough progressive alliances between cities, movements, and political organizations and public investment in future data-intensive infrastructures and welfare systems for the common good we can move “from surveillance capitalism to a system capable of socializing data and experimenting with new forms of cooperativism”. To understand how alliances can be set up and be sustained one can think of the doctrine of interest convergence. The latter was coined by critical race theory precursor Derrick A Bell jr, who observed how the battle of black people for civil rights can only be one when their interests will align with those of the dominant white class. While this was originally used to criticise the approach of mainstream civil rights movements, I think it is also a reminder that we can only win if we build bridges with other people and groups who may be very different to you, but with whom you share the struggle against capitalist extraction, oppression, and power. One can think of the alliances of the queer community with the anti-war movement and with workers’ movements. In the tech sector, there is an increasing number of inspiring examples. I would like to shine a spotlight on AUDRi, the Alliance for Universal Digital Rights. AUDRi was founded by Equality Now and Women Leading in AI, two groups that have understand that one cannot achieve gender equality without effective digital rights. Their focus is one of the most important, albeit largely ignored, international governance initiatives: the UN Global Digital Compact, whose negotiations are underway and promise to reshape our future in a way similar to the UN Sustainable Development Goals. AUDRi is fighting relentlessly to make sure that equality is embedded in the Global Digital Compact (e.g. through its Feminist Principles). A Marxist approach demands that we all join in the fight and keep entering alliances that will ensure a more just cyber-physical world, because there is nothing that gives one more joy, as Gramsci told his son Delio, than all the people in the world, when they unite and work and fight and improve themselves.
